LIBRARY OF CONGRESS, 



FORCE COLLECTION.] 1 



t — 

J UNITED STATES OF AMERICA. * 

Hi" 



DEFENCE 



OF 



TWM, 12£!©gl^l®H 



OF 



'# 



ON THE 

RIGHT OF CONSTITUENTS TO GIVE INSTRUCTIONS 

TO THEIR REPRESENTATIVES, AND THE 

OBLIGATION OF THESE TO 

OBEY THEM. 



CITY OF BOSTON 




-WIY, 182? 



S3* 



DEFENCE. 



JL HE Exposition of the Middling Interest having 
been assailed by the adherents to The Few, chiefly be- 
cause it asserts the right of giving Representatives in- 
structions to obtain laws respecting the interests and 
welfare of their constituents, when not repugnant to 
those of the Commonwealth, this subject will form 
the chief topic of discussion in this defence. 

It is worthy of observation how instinctively men 
run to that side of every political question, which com- 
ports with their habitual sentiments, or favors their own 
personal views, if they have any. Hence the adher- 
ents to The Few, deny this right ; because they be- 
lieve the people must be managed, ami that The Few 
are better able to direct public affairs: while more 
liberal men assert this right ; because they believe in 
the competency of the people to judge for themselves, 
and that there is more safety and less party spirit, 
when individuals are left free to act upon the result of 
their own dispassionate reflection. This radical diver- 
sity of sentiment, and not the pretended distinction of 
wealth and poverty, has been throughout all our polit- 
ical distentions, the real, though often deeply covered 



4 

characteristic of parties in our country. Experience 
lias at length decided for every state in the union, but 
our own, that the people are capable of self govern- 
ment. Yet here in Massachusetts, the vaunted abode 
of superior intelligence, the people are not yet loosen- 
ed from their leading strings ! The Few assume pre- 
rogatives inconsistent with true civil liberty. They 
claim for the Representatives of their choice exemption 
from the controul of constituents : while the constitu- 
tion of the State, in terms most explicit, declares that 
u the people have a right to give instructions to their 
" Representatives." 

Will this intelligent community be longer satisfied 
with men who hold this doctrine in the face of the ex- 
press declaration of the great charter of our political 
rights ? We think they will not. The experience of 
the last twenty-five years has not been lost on the pres- 
ent generation. The people bring to the investigation 
of every constitutional question more and more sound 
common sense and more calm and dispassionate minds. 
They arc deeply concerned in knowing the truth ; 
more so, than in favouring any party or set of men. 
They now understand that the most celebrated law- 
yers did err in their construction of the Constitution 
on a question affecting the security of this state against 
foreign invasion ; that when men feel strongly, they 
cease to reason well ; and that it is more safe for the 
people to rely on the light of their own understandings, 
than to follow guides who may prove to be blind. It 
is now understood that there is no mystery in political 
propositions, no difficulty; that the major part of our 



fellow citizens cannot readily master ; when the ques- 
tion is stated fairly without the mystification of party 
spirit. 

Few subjects have been more discussed at different 
times, than the general question of the people's right of 
instructing their representatives, and the obligation of 
these to obey. Among other instances, the following 
are cited, as most able on the side of the independence 
of Representatives. In the year 181 1, the Assem- 
bly of Virginia had the subject under consideration in 
respect to the right of State Legislatures to instinct 
Senators in Congress. A voluminous report was made 
to that body against the right of instruction. That re- 
port, although the ablest argument ever written on that 
side of the question, was rejected by a large majority 
In England the celebrated Burke discussed it before 
his constituents, and argued on the side of the nega- 
tive. Even there the people claimed the right of in- 
struction, and Burke lost his election. We shall make 
no comments on either discussion : not on the first; — 
because that was a question arising out of the Con- 
stitution of the United States : not on the last ; be- 
cause we perceive no analogy between our government, 
which was created by the people's own act, and the 
British government, where the people derive their 
rights from an hereditary king's most gracious grant. 
We would not stray into an irrelevant discussion upon 
the Constitution of the United States ; we see no ad- 
vantage from discussing political propositions with re- 
ference to the impalpable British Constitution. We 
will rather endeavour to exemplify to the people how 



6 

easily constitutional questions may be well understood, 
when fairly stated and dispassionately examined. 

The question is on the construction of the Constitu- 
tion of this State in reference to the obligation it im- 
poses on Representatives to obey the instructions of 
their constituents respecting subjects of local concern- 
ment. Here it may be well to consider what is con- 
straction. In reference to a compact, it is simply 
judging of the intention of the parties bound by the 
instrument. The constitution of our State is a com- 
pact of the people, made by each one with all others. 
Jt was adopted by the people : and every investiga- 
tion of a constitutional question, is simply an inquiry 
into the meaning of the people. Construction, there- 
fore, in reference to the subject now under considera- 
tion, is merely judging of the intention of the people 
from the words of the Constitution, and the circumstan- 
ces connected with its adoption. 

Whether the people intended to reserve the right in 
controversy ; and that their representatives should 
obey the instructions, which should be given consistent- 
ly with the fundamental principles of the Constitution, 
is the fair statement of the question. To shew what 
was their intention, we shall endeavour to maintain the 
following propositions : First, that the people have the 
right to adopt such form of government as they may 
deem wise and expedient ; and consequently they had 
the power of constituting their government in such 
manner, as to reserve to themselves the right of instruct- 
ing their Representatives : 



Second ; That they have reserved the right to give 
instructions to their representatives in the formation of 
all laws respecting subjects of local concernment, and 
that when the instructions given are not repugnant to 
the constitution, the Representatives are bound to obey 
them. 

To establish the first of these propositions, it is only 
necessary to cite the 4th and the 7th articles of the 
declaration of rights. 4th art. 6i The people of this 
" Commonwealth have the sole and exclusive right of 
"governing themselves as a free, sovereign and inde- 
" pendent state ; and do and forever hereafter shall 
'* exercise and enjoy every power, jurisdiction and 
ft right, which is not, or may not hereafter be by them 
« expressly delegated to the United States of America 
" in Congress assembled." 7th art. « Government is 
" instituted for the common good, for the protection, 
" safety, prosperity and happiness of the people ; and 
" not for the profit, honor or private interest of any one 
88 man, family, or class of men Therefore the people 
" alone have an incontestible, unalienable and indefea- 
a sible right to institute government and to reform, al- 
" ter, or totally change the same ; when their protec- 
u tion, safety, prosperity and happiness require it." 
From these articles no proposition can be plainer, than 
that the people had the right of reserving to themselves 
the power of giving instructions to their representa- 
tives. That they have reserved this right, is equally 
manifest from the same high authority. 

To establish the second proposition, we cite the £9th, 
18th and 5th articles of the declaration of Rights* 



8 

The 19th article declares " that the people have a 
(i right in an orderly and peaceable manner to assemble 
" to consult upon the common good, give instructions to 
a their representatives ; and to request of the Legisla- 
" tive Body by the way of addresses, petitions or re- 
u monstrances, redress of the wrongs done them, and 
« of the grievances they suffer." The 18th article de- 
clares, (i that a frequent recurrence to the fundamental 
(i principles of the Constitution, and a constant adher- 
" ence to those of piety, justice, moderation, temper- 
" auce, industry and frugality, are absolutely necessary 
4i to preserve the advantages of liberty, and to main- 
< ; tain a free government. The people ought, conse- 
" quently, to have a particular attention to all those 
" principles, in the choice of their officers and repre- 
" sentatives ; and they have a right to require of their 
" lawgivers and magistrates an exact and constant o&- 
" servance of them in the formation and execution of 
" the laws necessary for the good administration of 
" the Commonwealth." The 5th art. declares, "that 
" all power residing originally in the people, and being 
lt derived from them, the several magistrates and offi- 
" cers of Government, vested with authority, whether 
" Legislative, executive, or judicial, are their substi- 
" tutes and agents ; and are at all times accountable 
« to them." 

That the people have a right to give instructions of 
some kind to their Representatives is declared in the 
19th article, in terms of such singular precision and 
clearness, as precludes all doubt on this branch of the 
second proposition : and we will not throw away ar~ 



9 

gumeut upon it, till some adherents to the few pre- 
tend to doubt again : Then we shall simply challenge 
any man of character among them to assert before the 
public, on the responsibility of his name, that it is his 
belief and opinion, that the people, when they declar- 
ed in their constitution, that they have a right to give 
instructions to their representatives, intended to say, 
that they had not such a right. We think no man of 
common sense or honesty, or any sense of character^ 
will be so bold. Until the affirmative is made to sig- 
nify at all times the negative, we confess ourselves 
obliged to understand from the 19th article, that the 
people did intend to reserve, and have reserved, to 
themselves, the right of giving to their representatives 
instructions of some kind. 

The Constitution having thus clearly established the 
right of the people to give instructions of some kind, 
we proceed to enquire into the nature and extent of 
these instructions, and to show, that they may be given 
to Representatives as an imperative direction in the 
formation of all laws respecting subjects of local con- 
cernment. 

The word instructions, from its well known use to 
signify orders of a government to their foreign ministers 
and ambassadors, has acquired a technical meaning in 
politics ; and the use of it in our constitution, between 
the people and their representatives, imports not only 
that the same relation of superiority and subordination 
exists between the people and their representatives as 
between a government and its ambassadors ; but that 



10 

the same precision in directions may be used by the 1 
people to their representatives, and the same exact and 
constant observance required of them, as is now used 
by a government, and required of its ministers. 

The Constitution, however, has not left its meaning, 
in respect to the nature and extent of these instructions, 
to be settled by the speculations of philologists. By 
the 5th article it is declared, that all Legislative officers 
are the agents of the people ; and thus the relation of 
principal and agent between the people and their re- 
presentatives is expressly established by the Constitu- 
tion. Agency implies subordination. A representative, 
say the English authorities, is the proxy of his con- 
stituents ; and if these have a right to obtain laws for 
their own peculiar beuefit, which are not repugnant to 
the constitution, they surely have a right to instruct 
their proxies to procure the same in their behalf. But 
the 18th article places the nature and extent of these 
instructions in the clearest light. By this it is declar- 
ed, that the people have a right to require of their law- 
givers, an exact and constant observance of the princi- 
ples therein mentioned, in the formation of the laws 
necessary for the administration of the Commonwealth. 
How can this observance be required, unless by pre- 
vious instruction ? For instructions must be previously 
given, in order to guide and direct the representative 
in the formation or act of making laws : else it is ob- 
vious, the people have no means of requiring the ob- 
servance of any principles iu the formation of any 
laws ; because, if the people may not previously in- 
struct one &et of representatives- to prevent them from 



ii 

tioing wrong, neither 'can they a succeeding set, to 
correct the errors of the former : so that the words of 
the 18th article, declaring the right of requiring ob- 
servance of the fundamental principles of the constitu- 
tion, would, without the right of previous instruction, 
become a mere dead letter, void of sense or meaning. 
We conclude, therefore, that the instructions intended 
in the 19th article must be given previous to Legisla- 
tion. Could there be any doubt on this point, from 
the words of the constitution, we should appeal to the 
circumstances connected with its adoption. The recol- 
lection of the sufferings our ancestors endured from a 
legislature acting independently of their will, cannot fail 
to throw so strong a light upon the pages of the con- 
stitution, as will bring out the people's intention, in 
this particular, with a clearness and precision that must 
satisfy every honest enquirer after truth. 

It now remains to show in what cases such previous 
instructions may be constitutionally given. No limita- 
tion is fixed : the right is co extensive with the objects 
of legislation. By the 18th article, the people may re- 
quire the observance of the principles therein mention- 
ed, in the formation of laws generally. No words, we 
think, can make the intention of the people plainer on 
this branch of the question. But, as if it were the de- 
sign of the framers of the constitution to preclude all 
question as to the cases in which instructions might be 
given, it is said, by way of exposition of what laws 
are intended, that they are laws necessary for the ad- 
ministration of the Commonwealth. Thus in effect de- 
claring, that the right of giving previous instructions is 



12 

co-extensive with the subjects of Legislation ; for they 
maybe given in the formation of all laws necessary for 
the administration of the affairs of the Commonwealth. 

It is in vain the adherents to the Few object, that 
this doctrine may make a mere automaton of a Repre- 
sentative, deprive him of all power of deliberation, and 
even of the boasted right of speaking and acting for 
himself. We answer, that while a representative has 
as much good sense and sound political integrity as his 
constituents, he need apprehend no interference, if he 
fulfils their wishes ; and when he ceases to do this, the 
sooner he becomes an automaton, the better : that as 
to the suspension of his power to deliberate, it ought to 
be suspended, like every other agent's, when his prin- 
cipals assume to deliberate, as constitutionally they 
certainly can, and decide for themselves : and as to the 
privation of the representative's right of " thinking and 
acting" for himself, he is not deprived of this in his 
individual capacity. In this capacity, he may think and 
act as he pleases ; but in becoming agent for others, he 
expressly assumes to act as they shall direct. Every 
right to direct implies a correspondent obligation to 
obey. Who has ever heard it seriously contended, 
that a commercial agent, though interested in the ad- 
venture, has a right to disregard the instructions of a 
majority in interest of the concern, and act directly in 
opposition to their positive orders, upon the authority 
of his own opinion ? Lawyers know that an agent 
thus conducting, acts upon the peril of paying all the 
damages, consequent upon his self sufficiency. 



13 

But the Exposition of the Middling Interest, (to 
which this supplement is appended,) did not assert the 
right of instruction in all cases. It was not to their 
purpose at the time. We postpone therefore the fur- 
ther consideration of the general question ; and invite 
candid men of all parties to a more particular conside- 
ration of the right to give instructions on subjects of lo- 
cal concernment ; and the course which a scrupulous 
representative ought to take, when in conscience he 
cannot promote the express wishes of his constituents. 

We have shewn that the relation of principal and 
agent is established by the constitution ; that this rela- 
tion implies subordination in the agent. We have 
shewn the right of constituents to instruct; that these 
instructions may be given previous to legislation ; and 
we think it cannot be honestly doubted by any one who 
can read the 18th and 19th articles of the Declaration 
of Rights, that these instructions may be given on all 
subjects of legislation^ in which the interests of other 
parts of the Commonwealth are not affected, and which 
are not repugnant to the constitution. We have shewn 
that the constituents of a town have clearly the right to 
obtain laws for their own benefit respecting their local 
concerns, that their representative is their proxy, and 
therefore they may instruct him to procure the same in 
their behalf; that the right to instruct a proxy implies 
a correspondent obligation to obey, and that an agent 
in assuming this relation with his principals, of neces- 
sity engages to act as they shall direct. 

This obligation however is denied on another ground, 



14 

that there are no constitutional means of enforcing obe- 
dience to such instructions ; because a representative 
has a constitutional right to keep his seat to the end of 
bis term. We answer : will any one deny that the le- 
gislature are bound by the constitution to authorise and 
require the several towns and parishes to make suitable 
provision for the institution of public worship ? Will it 
be denied that the legislature are bound to establish a 
salary for the Governor, and permanent and honorable 
salaries for the Justices of the Supreme Judicial Court? 
Certainly not, and yet the people have no means of co- 
ercing the members of the legislature to adopt such 
measures : There is none but the obligation of the oath 
which is exacted by the constitution of every representa- 
tive before he enters on the discharge of the business of 
his office, every representative being required to swear 
that he will faithfully discharge all the duties incum- 
bent on him as a representative, agreeably to the rules 
and regulations of the constitution : consequently in as 
much as we have established the constitutional right to 
give instructions, and a correspondent obligation to 
obey them, obedience to such instructions is one of the 
duties which every representative solemnly swears to 
fulfil. This oath we consider sufficient to bind all ho- 
nest men. But admit that a representative should have 
conscientious scruples against implicit obedience, which 
must be a very rare case in a matter of local concern- 
ment, what as an honourable man, as a man of princi- 
ple, is his plain and obvious course? In such a case, 
let him follow the example of a distinguished Senator 
of Congress, now high in office, and in the affections 
and respect of the nation. Let him address his constit? 



u 

uents, frankly av.ow his scruples, and withdraw fror$ 
an agency, which he can no longer execute in confor- 
mity with their views. This would he manly ; and 
above all would furnish a distinguished and convincing 
proof of the integrity of his heart, and of the sincerity 
of his conscientious objections. 

We have done with this subject for the present. We 
have left unsaid much, that will occur to the minds of 
men of reflection. We tiust they will maturely consi- 
der this important subject. None of more moment has 
been made the topic of dispute between parties. It m 
in effect a question on the fundamental principle of our 
government; whether the power of the State resides 
in the people ; or is vested at every election beyond 
their controul in the representatives elected. Let the 
good sense of the people decide. For ourselves, we 
renewedly state, that we do consider, and are resolved 
to maintain, that the representatives of a town are 
constitutionally bound, by the instructions of their con_ 
stituents, respecting subjects of local concernment, not 
inconsistent with the constitution ; and that we hold it 
dishonorable, and in violation of the oath of office, for 
any representative to refuse obedience to such instruc- 
tions, and yet retain his seat in the Legislature. 

In conclusion, we would remark, that we have beeu 
charged with endeavours to excite men's passions, and 
with prating about patriotism. They who say this of 
us, are miserably wanting in tact, and just discern- 
ment of the signs of the times. During the fifteen 
years preceding the re-election of President Monroe, 



16 

the people of the United States had been agitated with 
furious passion. Men discarded reasoning and judg- 
ment; and errors of the head, it was boldly asserted, 
were worse than errors of the heart ! It was then that 
appeals were made to men's passions, and then 'patriot- 
ism, the stalking horse of party, was led forth with 
music and with banners, and escorted along our streets 
with a pomp and show that make us smile now, when 
we think what children it made of this grave and seri- 
ous community Butt here is a time for calm dispassion- 
ate reflection in political, as in personal conflicts. We 
think that time has come : and instead of seekiug to 
excite passion, or of appealing to "patriotic" feelings, 
we ask every citizen calmly to consider his own inters 
est and rights : and as civil liberty is worth nothing, un- 
less it secures to every individual freedom of opinion 
and of suffrage, we exhort every man to give as much 
attention to passing political affairs, as he can consistent- 
ly with his business ; to exercise his judgment on these 
subjects calmly and considerately ; and to vote as his 
own judgment, not as other men's shall dictate. 



